My Old Lawyer won’t Give me my Case File – What can I do?

Firing your lawyer with a pending lawsuit is one of the hardest decisions you will have to make, and you should only do it as a last resort. But if there are clear signs of apathy or incompetence, you may have no choice but to start over with a new attorney. However, quitting your relationship with a lawyer isn’t as simple as sending a breakup text and moving on with your life. There are consequences to changing lawyers, which should be explained in your contract with your current law firm. Additionally, you’ll need to ask your lawyer for your case file, so that your next attorney is up to date on what has taken place in your lawsuit.

This should be a simple process: call or email your lawyer and schedule a time to pick up your file. Or, have your lawyer mail the file to you or your new attorney. Unfortunately, it’s not always that easy, based on the number of people who call us to ask:

“My lawyer does not want to give me my file. What can I do?”

First, we want to assure you that you are legally entitled to your case file, and your lawyer cannot hold on to it for any reason. And there are solutions if they don’t send your file in a timely manner, or make excuses as to why they can’t return it. What these solutions are and how you can act on them are surely on your mind, so here are the topics we will go over in this article:

• How long does it usually take for a law firm to send me a copy of my file?
• What are my rights if my lawyer refuses to send me a copy of my file?
• Should I sue my lawyer if he won’t give me my file?

The information we provide will give you an overview of your rights and legal options. But there may be issues between you and your lawyer that need to be discussed in more detail. Additionally, you should go over all your available options with an attorney to ensure that you’re making the most effective choice for your needs. For expert advice on any of your legal concerns, speak with the lawyers of Normandie Law Firm.
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How Long should it take to Receive my File from my Attorney?

When it comes to releasing a former client’s file, here is the rule according to the California State Bar:

“A member whose employment has terminated shall: (1) Subject to any protective order or non-disclosure agreement, promptly release to the client, at the request of the client, all the client papers and property.”

The key word here is “promptly,” but what does that mean, exactly? Well, that’s debatable when it comes to legal documents, but if you were to ask most lawyers, they would probably answer, “No more than 30 days.” We find this to be a reasonable timeline, though lawyers should mail over case file in 1 to 2 weeks it at all possible. You have to consider that the client is in the middle of a case and it’s your ethical duty to not cause unnecessary delays. That includes prompt delivery of their case file, usually to the new attorney so they can start reviewing it right away.

Has it been 30 days and you’re still without your file? Are you having trouble getting clear answers when you ask your law firm about the status of your file? If so, please give us a call right away. It’s unfortunate, but legal intervention is often required when lawyers play such games. Our attorneys can advise you of your rights and take the necessary actions to retrieve your case file.

Why is it taking so Long for Them to Send me my File?

Our hearts go out to accident victims when they come to us, asking “It’s been over 30 days. Why have they not sent me a copy of my file?” It’s truly frustrating when the outcome of your lawsuit depends on these documents.

If your case is especially complex with a large amount of evidence, it could take longer than normal to duplicate your case files before it’s sent back to you. But if that’s the case, your lawyer should tell you that, along with a timeline of when you can expect your file. If they’re giving you unclear or vague answers, or simply ignoring your calls, then you have a real problem on your hands. At this point, you are probably wondering, “Can I report my lawyer if I have not gotten a copy of my file?”

One way to handle the situation is filing a complaint with the State Bar of California. Your lawyer has a duty of care to you, including not causing any disruptions to your case unless they are absolutely necessary. By not giving you your case file, they are engaging in unethical and unnecessary conduct that can hurt your case. You can file a complaint by using the Bar’s “Attorney Misconduct Online Complaint” form, or by downloading a copy of the form and filling it out by hand. That will launch an investigation, which may result in disciplinary actions against your attorney. But this process takes time, which is undoubtedly in short supply when you’re trying to recover damages after an accident.

For the fastest solution, we recommend getting help from another attorney, which you may already have. If not, please keep reading to learn about the value of hiring a new lawyer as soon as possible.

I Don’t Have a New Lawyer yet. Should I do that First?

Yes, if at all possible, please hire a new attorney before asking for your case file. When you retain a new attorney, that lawyer’s firm should take care of the transfer process, which includes contacting your old law firm and asking for your file. This will take the burden off of you and make things less awkward between you and your old attorney.

But that’s not the only reason you should hire a new attorney before asking for your case file. Changing counsel becomes more difficult the further you are in your case. For one thing, your new lawyer will have to invest more time in order to get themselves up to date with your lawsuit. Additionally, your ex-lawyer is entitled to a portion of your settlement for the work they’ve done on your case prior to the switch. Calculating a fair amount for their time and effort is easier the earlier you are in your case. So if you haven’t found a new lawyer yet, we recommend doing that first and letting them retrieve your case file for you.

If you’re still hesitating on this issue, we can’t blame you. It’s a huge decision that you never expected to make. And maybe you’re unsure of whether your reasons for leaving your attorney are valid. If so, here are some questions to ask yourself:

• Is your lawyer taking a week or more to return your calls?
• Is your lawyer disorganized, i.e., misplacing documents or missing deadlines?
• Does your lawyer lack the experience to handle the complexities in your case?
• Are they pressuring you into accepting a settlement you don’t agree with?
• Are they taking actions that cause delays in your case without notifying you ahead of time?
• Have they done something that has cost you the ability to win your case (legal malpractice)?

All these are serious issues that can merit the need to find a new lawyer. But it’s possible that there are misunderstandings between you and your lawyer, which can be cleared up with an honest conversation. Then again, issues like legal malpractice, which we will talk about in a later section, are extremely serious and should be handled right away.

If you haven’t found a new attorney yet, please consider a free second opinion with the lawyers of Normandie. We’ll be happy to discuss all your concerns and help you decide on the best course of action.

If I Owe my Lawyer Money, can They Hold my File until I Pay them Back?

No, your lawyer cannot hold your file hostage if you owe them money. It’s astounding that lawyers still try to get away with this, but we know they do because of the clients who come to us with this question. First, if your attorney is referring to legal fees, that should not be a factor if they took your case on a contingency fee basis. That means they agreed to wait until your case is settled to recover their legal fees and administrative costs. Obviously, they deserve to get paid for their work, even if you fire them. But your new firm should work out a split fee agreement, so that your former lawyer receives a portion of your settlement award. They agreed to work on contingency, so they’re going to have to wait for payment, plain and simple.

Now, if you’re talking about loans from your law firm, that’s something you’ll need to pay back regardless of whether or not you win your case. But you are still entitled to your case file even if they’ve loaned you money. The law firm can take legal action against you if you don’t pay them back, but that’s a whole separate issue from releasing your case file. If you are currently in this situation, please give us a call at our office right away. We have methods for retrieving your documents, but you must act quickly to prevent any costly delays in the resolution of your lawsuit.

Can I Sue my Lawyer if I have not Gotten a Copy of my File?

We’ve talked about filing a complaint with the State Bar of California if your lawyer refuses to turn over your file. But are there any other actions you can take? What about a lawsuit against your attorney?

Clients can sue their attorney for legal malpractice if they are able to prove the following:

• The lawyer failed in their duty to engage in ethical conduct.
• The lawyer’s failure in their duty was due to negligence, such as making a mistake or not following through on a specific action.
• This conduct by your lawyer caused you financial harm.
• The amount of financial damages you suffered justifies a lawsuit.

This sounds pretty straightforward, but proving all these points is a lot harder than you think. You would definitely need a lawyer’s help with this type of lawsuit, which is another reason to find a new lawyer before leaving your old one. But you’ll have to really think about whether such a lawsuit is worth it. Here are some client complaints that may be successful in a lawsuit for legal malpractice:

• Your attorney is not working on your case.

If it’s clear that your case has been put on the back burner, that may count as malpractice depending on how much time has gone by. Generally, you would have to show that your case was negatively impacted, and that the impact caused you financial losses.

• Your case is dismissed as a lack of work from your attorney.

This is the most common result when a lawyer stops working on a case. The problem here is that you would have to prove: 1) your case was strong enough to win if you went to trial; and 2) you would have won the case if it was handled by a more competent attorney. If you can prove these elements, you may be awarded whatever compensation you would have won from a successful lawsuit.

• Your lawyer agrees to a settlement without your approval.

This is a clear example of legal malpractice, as a lawyer must have a client’s permission prior to accepting a settlement. But in order to sue your lawyer, you’d have to show that the settlement agreed upon by your attorney was for less than what your case is worth. That would prove you suffered financial loss as a result of your lawyer’s actions, which is necessary for a case of legal malpractice.

• Your lawyer is misusing payments you’ve made up front.

This should not be an issue if your lawyer is working on contingency, but there are cases where clients pay upfront for individual services. If your lawyer has used those funds for anything other than what you agreed to, they’re essentially stealing from you and committing legal malpractice. This is an extremely serious offense, and you should file a State Bar complaint right away. This is one of the few times where the Bar will act promptly, in which case, you may not need to file a lawsuit.

As you can see, there are valid reasons to sue your lawyer, but it may not be worth it if needing to get your case file is the main reason for your lawsuit. Most clients that come to us from other law firms don’t have to consider this option since we handle everything related to the transfer process. But if your grievances with your old lawyer go beyond not releasing your file, then you should address those issues right away with another attorney. For more information on legal malpractice and your right to sue your lawyer, please don’t hesitate to give us a call.

Free Second Opinion

We’ve talked a lot about the importance of finding another lawyer as soon as possible. Then again, it’s not something you should do on a whim, so we understand if you’re struggling to take the plunge. We’d like to advise you of the pros and cons of switching lawyers, and make sure that your comfortable with the process involved. If you’re ready to discuss your options with an experienced attorney, please call our office to schedule a free second opinion.

Like doctors, lawyers can give second opinions on things like case value, available legal actions, and whether an attorney is doing their job. If you decide that you’d like us to represent you, we’ll contact the court and your current law firm to ask for your file. We will also take any other actions that are needed for the transfer process, including working out a payment agreement with your old lawyer. That will hopefully remove a big burden off your shoulders and ease the tension between you and your former attorney.

The Attorneys of Normandie Law Firm

When you think about it, ending a contract with your lawyer is not that different from breaking up with a significant other. There are hurt feelings, unresolved grievances, and that awkward process of trying to end things on a friendly note. Attorneys should be professional in these cases, and do what they can to make the transition as easy as possible for their client. In reality, lawyers can act in bad faith and make it difficult for clients to obtain valuable information pertaining to their case.

While there are legal actions you can take against your lawyer, it’s usually easier to find a new attorney and have them take care of the transfer process for you. We can do that for you and much more, which you can find out about during a free consultation. Our attorneys have the knowledge and experience to handle any type of personal injury lawsuit, including:

• Car accidents

• Bus accidents
• Truck accidents
• Motorcycle accidents
• Slip and falls
• Trip and falls
• Workplace injuries
• Dog / animal bite incidents
• Medical malpractice
• Sexual assault / sexual harassment
• Assault and battery
• Helicopter accidents
• Plane accidents
• Defective product injuries
• Hotel liability accidents
• Rental car accidents
• Wrongful death injury claims

Our attorneys will fight aggressively for results from day one, at no upfront cost to you whatsoever. Under our Zero Fee Guarantee, we only get paid for our services if we win your case. So there is no financial risk to you at any point if you choose to work with us. Just schedule a free consultation with one of our lawyers, and we’ll take of the rest.

Contact the lawyers of Normandie and let us fight for the compensation you deserve.